Patna High Court - Orders
Maheshwar Yadav vs The State Of Bihar & Ors on 17 June, 2014
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 34996 of 2011
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Maheshwar Yadav son of late Ram Sharan Yadav Resident of
Village - Matihani, Yadav tola, P.S. Matihani District -
Begusarai.
.... .... (Informant).... Petitioner
Versus
1. The State of Bihar
2. Arvind Singh
3. Bambam Singh
4. Mukund Singh
5. Rajiv Singh
All Sl.No. 2 to Sl.No. 5 sons of Upendra Singh resident of
Village and P.S. - Matihani, District - Begusarai.
....(FIR named accused) ....Opposite Parties
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Appearance :
For the Petitioner/s : Mr. Arbind Kumar
For the Opposite Party/s : Mr. Dilip Kumar, A.P.P.
Mr. Pramod Kumar
Mr. Chy. Shyam Nandan
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CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR
CAV ORDER
9. 17-06-2014The petitioner, who is informant in Sessions Trial No. 668 of 2008 (arising out of Matihani P.S. Case No. 33 of 2006), registered for the offence under Sections 302/34 of the Indian Penal Code and section 27 of the Arms Act, has prayed for quashing of an order dated 03-08-2011 passed by learned Fast Track Court - V, Begusarai (hereinafter referred to as "FTC-V"). By the said order, the learned FTC-V has rejected the petition filed under Section 319 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") for summoning opp.party no. 2 to 5 to face trial alongwith the accused persons facing trial in Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 2/15 the said case.
Short fact of the case is that on the written complaint of petitioner (informant), an F.I.R., vide Matihani P.S. Case No. 33 of 2006 was registered for the offence under Sections 302/34 of the Indian Penal Code and Section 27 of the Arms Act, 1959 against opp. party no. 2 to 5, one Budhan Singh @ Raj Kumar Singh and other three unknown accused persons. It was disclosed by the petitioner-informant in the F.I.R. that he was informed by 1. Chandan Choudhary (PW-1), 2. Sanjay Choudhary, 3. Santosh Kumar @ Moti (PW-3), 4. Shashi Bhushan Rai @ Jaggu (PW-2) and 5. Bholi Rai (PW-4) that on 04-05-2006, son of informant, namely; Rakesh Kumar @ Fantush Kumar was killed by accused persons, whose names have been referred here-in-above. It was disclosed that on 04-05-2006, his son (deceased) had gone to play a Cricket match in Malitola Simha. In the said match, several people of Matihani had gone to witness the match. At about 5:15 (A.N.), after the match was over, accused no. 2 (Arvind Singh), who was Mukhiya of Gram Panchayat, Matihani alongwith opp. party no. 3 to 5, accused Budhan Singh @ Rak Kumar Singh and other three unknown accused persons variously armed arrived Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 3/15 there. Accused Arvind Singh (opp. party no. 2) firstly opened fire and he exhorted other accused persons to catch the son of the informant, whereas, his son tried to flee away. After some distance the accused persons got hold of his son and all the accused persons killed him by fire-arm. The information regarding the occurrence was received by the informant at 6:00 P.M. and he noticed that several villagers had arrived Village Malitola Simha, where he was informed by witnesses, mentioned above, regarding the exact occurrence. He claimed that several other persons had also seen the occurrence. The reason for occurrence, as disclosed by the informant, was that on 30-03-2005, the Mukhiya (opp. party no. 2) had created nuisance in the village. He alongwith 25-30 young persons variously armed had assaulted several persons and he had also used abusive language at his residence. For the said occurrence, an F.I.R. was got lodged in the Matihani police station, regarding which, the panchayati was also held and officer-incharge-cum-Inspector of the Matihani Police Station had instructed for not repeating the same thing in future.
After lodging F.I.R., vide Matihani P.S. Case No. 33 of 2006, the police started investigation, however; Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 4/15 after investigation, police submitted first chargesheet on 15-05-2007 against unknown three accused persons, keeping the investigation in respect of other accused persons open. It has been disclosed by the informant that on 27-05-2006, he had filed protest petition disclosing therein that the investigating officer was not investigating the case in a fair manner. Neither the statement of eye- witnesses was got recorded under Section 164 of the Cr.P.C. nor any of the F.I.R. named accused persons were arrested. Thereafter, the case of three accused persons was committed to the court of sessions and trial had commenced, vide Sessions Trial No. 668 of 2008. After framing of the charge, four prosecution witnesses were examined. During evidence of the witnesses, who were ocular witnesses, described regarding the involvement of opp. party no. 2 to 5. Thereafter, on 09-12-2009, a petition under Section 319 of the Cr.P.C. was filed on behalf of prosecution for summoning the accused persons named in the F.I.R. Since final chargesheet was not submitted against the F.I.R. named accused persons and investigation was still continuing, the learned FTC-V on 29-01-2010 dismissed the said petition, observing as follows:-
Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 5/15 "In my opinion, though these accused persons are named in the F.I.R. and examined all four witnesses had disclosed the name of these accused persons, but the investigation is still pending against these accused persons, it will not be proper to interfere with the investigation going on by police. Hence petition dated 09.12.09 U/s 319 Cr.P.C. is hereby rejected."
Subsequent to dismissal of petition filed under Section 319 of the Cr.P.C., the police submitted second chargesheet, vide Chargesheet No. 110 of 2010 dated 30-08-2010. The police exonerated the opp. party no. 2 to 5 and submitted chargesheet against one of the named accused, namely; Budhan Singh @ Raj Kumar Singh showing him as absconder. Since opp. party no. 2 to 5 were not sent up for trial by the investigating officer, the prosecution again filed a petition under Section 319 of the Cr.P.C. on 08-07-2011 for summoning opp.party no. 2 to 5 to face trial, which has again been rejected by order dated 03-08-2011, passed by the learned FTC-V, which has been assailed in the present petition.
Sri Arvind Kumar, learned counsel for the petitioner, assailing the impugned order, has firstly argued that though on record, there was a protest petition, the learned Magistrate accepted the final report in respect of Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 6/15 opp. party no. 2 to 5 without hearing the informant.
Learned counsel for the petitioner further argued that once during trial, witnesses had categorically made statement showing direct involvement of opp. party no. 2 to 5, there was no reason for the learned FTC-V for rejecting the petition under Section 319 of the Cr.P.C., but he was required to summon them to face trial alongwith accused persons already facing trial in Sessions Trial No. 668 of 2008. Learned counsel for the petitioner has highlighted that in the deposition, witnesses had made categorical statement that accused no. 2 had opened fire from AK-47 rifle, which hit the head of the son of the informant. He submits that there is consistent evidence showing involvement of opp. party no. 2 to 5 and accordingly, the prosecution had rightly filed petition for summoning opp. party no. 2 to 5. However, the learned FTC-V, on a totally unsustainable ground, has rejected the same. According to learned counsel for the petitioner, the learned FTC-V, in its impugned order, has noticed that four witnesses had disclosed the name of aforesaid opp.
party no. 2 to 5, but on the plea that Investigating Officer has submitted final report against them, he has rejected the petition. The learned FTC-V has further rejected the Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 7/15 petition on the ground that on the same point, earlier petition was rejected. Learned counsel for the petitioner submits that if there is sufficient material to show involvement of a person, who is not accused, he is required to be summoned to face trial. In support of his argument, learned counsel for the petitioner has heavily relied on AIR 2010 SUPREME COURT 518 (Suman Vs.- State of Rajasthan & Anr.) and 2011 (1) PLJR 146 (Meena Devi -Vs.- The State of Bihar).
Sri Dilip Kumar, learned Addl. Public Prosecutor, adopting the argument of learned counsel for the petitioner, submits that there was sufficient evidence on record for summoning the opp. party no. 2 to 5.
Sri Pramod Kumar, learned counsel, who was assisted by Sri Choudhary Shyam Nandan, learned counsel for opp. party no. 2 to 5 has vehemently opposed the prayer of the petitioner.
In this case, the opp. party no. 2 to 5 have also filed rejoinder-cum-counter affidavit. In the counter affidavit, it has been reiterated that earlier for the same prayer, petition was filed, which was rejected by the learned FTC-V. The opp. party no. 2 to 5 have further tried to state that the son of informant was done to death Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 8/15 by one of the gangster namely Bhusan Chaudhary.
Sri Pramod Kumar, learned counsel for private opp. parties has also argued that ofcourse, in examination-in-chief, witnesses have made statement showing involvement of opp. party no. 2 to 5, facts disclosed in their cross-examination, creates doubt regarding involvement of opp. party no. 2 to 5. He emphasized that while exercising power under Section 319 of the Cr.P.C., a person can be summoned only in a case, where there is sufficient evidence to show that if such evidence is not rebutted, he will be held guilty and convicted. In support of his argument, he has heavily relied on an unreported judgment of the Apex Court in Criminal Appeal No. 998 of 2009 [arising out of S.L.P.(Crl.) No. 5781 of 2006, (Sarbjeet Singh & Anr. - Versus- State of Punjab & Anr.)]. He has specifically referred to paragraph nos. 17 & 18 of the said judgment. For just decision in the matter, it would be relevant to incorporate paragraphs 17 & 18 of the said judgment, which are quoted here-in-below:-
"17. The provision of Section 319 of the Code, on a plain reading, provides that such an extraordinary case has been made out must appear to the court. Has the criterion laid down by this court in Municipal Corporation of Delhi (supra) been satisfied is the question?
Indisputably, before an additional Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 9/15 accused can be summoned for standing trial, the nature of the evidence should be such which would make out grounds for exercise of extraordinary power. The materials brought before the court must also be such which would satisfy the court that it is one of those cases where its jurisdiction should be exercised sparingly.
We may notice that in Y. Saraba Reddy v. Puthur Rami Reddy and Anr. [JT 2007 (6) SC 460], this Court opined:
"....Undisputedly, it is an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking action against a person against whom action had not been taken earlier. The word "evidence" in Section 319 contemplates that evidence of witnesses given in Court...."
An order under Section 319 of the Code, therefore, should not be passed only because the first informant or one of the witnesses seeks to implicate other person(s). Sufficient and cogent reasons are required to be assigned by the court so as to satisfy the ingredients of the provisions. Mere ipse dixit would not serve the purpose. Such an evidence must be convincing one at least for the purpose of exercise of the extraordinary jurisdiction.
For the aforementioned purpose, the courts are required to apply stringent tests; one of the tests being whether evidence on record is such which would reasonably lead to conviction of the person sought to be summoned.
18. The observation of this Court in Municipal Corporation of Delhi (supra) and other decisions following the same is that mere existence of a prima facie case may not serve the purpose.
Different standards are required to be applied at different stages. Whereas the Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 10/15 test of prima facie case may be sufficient for taking cognizance of an offence at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question.
The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof, viz., (i) an extraordinary case and (ii) a case for sparingly exercise of jurisdiction, would not be satisfied."
In sum and substance, it has been reiterated that there is no such evidence for forming an opinion that evidence is sufficient for conviction of opp. party no. 2 to
5. Sri Pramod Kumar, learned counsel for private opp. parties further reiterates that since for the same relief, earlier petition filed under Section 319 was rejected, the learned FTC-V has rightly rejected the second application, which requires no interference.
Besides hearing learned counsel for the parties, I have also perused the materials available on record. In this case, photocopy of deposition of PW-1 to PW-4 have been brought on record by the petitioner alongwith rejoinder to the counter affidavit of opp. party Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 11/15 no. 2 to 5. The rejoinder has been filed on 4th March, 2014. It is true that earlier, prosecution's petition dated 09-12-2009, which was filed for summoning the opp. party no. 2 to 5, was rejected by the FTC-V, fact remains that the said petition was rejected merely on the plea that investigation against opp. party no. 2 to 5 was still pending. Meaning thereby that petition filed under Section 319 of the Cr.P.C. on 09-12-2009 was rejected on 29-01-2010, not on merit, but due to pendency of investigation against opp. party no. 2 to 5. Accordingly, petition filed under Section 319 of the Cr.P.C. after submission of final report was required to be examined on the basis of evidence brought on record during the trial, which has not been done by the learned FTC-V, while rejecting the said petition by its impugned order. The petitioner has made specific statement in the petition that PW-1, namely; Chandan Choudhary in paragraph 1 of his deposition, has categorically made statement showing involvement of opp. party no. 2 to 5. It has been categorically stated that deceased received fire arm injury by opp. party no. 2 (Arvind Singh). Similarly, PW-2 (Shashi Bhushan Rai @ Jaggu) in paragraph 1 of his evidence has disclosed the fact showing participation of Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 12/15 opp. party no. 2 to 5 in the occurrence with specific statement that opp. party no. 2 fired by AK-47 rifle, which hit the forehead of the deceased. PW-3 (Santosh Kumar) and PW-4 (Bholi Rai) have made similar statement. I have also perused the deposition of aforesaid witnesses. Copy of same has been brought on record through rejoinder to the counter affidavit. Surprisingly, name of aforesaid four witnesses has come in the F.I.R. The informant had disclosed in the F.I.R. that he was informed by aforesaid PWs. 1 to 4 regarding occurrence, since at the time of occurrence, the informant was not present at the place of occurrence. Surprisingly, the Investigating Officer appears to have not conducted investigation in the present case in fair manner, which is required to be deprecated. It would be relevant to quote last paragraph of the order dated 03-08-2011, whereby, the learned FTC-V has rejected the petition filed under Section 319 of the Cr.P.C. on behalf of prosecution, which is quoted here-in-below:-
"From the perusal of case record, it appears that all the examined four witnesses has disclosed the name of the above named 4 persons, though I.O. has submitted final form against them, as not sent up for trial means he has not found hope of these persons in committing offence. Informant is yet to be examined. Petition of the same nature has been rejected earlier. If this petition is allowed, it will cause much delay in trial of this case. On the light Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 13/15 of discussions made above petition dated 8.07.11 U/s 319 Cr.P.C. is hereby rejected."
On examination of the observation of the learned FTC-V, the Court is of the opinion that the learned court below has completely ignored the provision of summoning the persons to be associated as accused in a trial. Once the learned FTC-V himself was satisfied that four witnesses had disclosed the name of opp. party no. 2 to 5, there was no reason to reject the petition on unsustainable reasoning. The reasoning, which has been assigned by the learned court below, is totally unsustainable and is liable to be set aside. Petition filed under Section 319 of the Cr.P.C., which was filed earlier, was not at all rejected on merit, but only on technicality keeping in view the fact that investigation against opp. party no. 2 to 5 was still continuing. Once, final report was submitted and opp. party no. 2 to 5 were exonerated by the Investigating Officer, cause of action arose to the prosecution for filing petition under Section 319 of the Cr.P.C. on the basis of evidence brought on record during the trial and accordingly, the learned court below was required to examine the petition on merit and decide the same on the basis of evidence on record. It is true that Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 14/15 while summoning the persons to be associated as accused under Section 319 of the Cr.P.C., test is not exactly similar to the provision relating to the stage of cognizance or framing of the charge, but some more material is required to be examined at that stage. It does not mean that the prosecution in petition filed under Section 319 of the Cr.P.C. must indicate that on the evidence brought on record, one is to be held guilty and convicted, rather the evidence brought on record must indicate probability of conviction of a person sought to be summoned. In any event, the learned FTC-V was not required to reject the petition filed under Section 319 of the Cr.P.C. on behalf of prosecution on the basis of reasoning, which has been assigned by the learned FTC-V. Accordingly, after going through the materials available on record, particularly; the deposition of PW-1 to PW-4, I am satisfied that the learned FTC-V has committed serious error in dismissing the petition filed on behalf of prosecution under Section 319 of the Cr.P.C.
Accordingly, order dated 03-08-2011 passed in Sessions Trial No. 668 of 2008 (arising out of Matihani P.S. Case No. 33 of 2006) by the learned Fast Track Court
- V, Begusarai is, hereby, set aside and the matter is Patna High Court Cr. Misc. No. 34996 of 2011 (9) dt. 17-06-2014 15/15 remitted back to the court below to examine the matter and pass order afresh in accordance with law particularly, in view of evidence brought on record during the trial. The learned court below may not be persuaded to pass order on the strength of final report submitted by the Investigating Officer in respect of opp. party no. 2 to 5.
With above observation and direction, the petition stands allowed with further direction to the learned FTC-V to pass order afresh on petition dated 08-07-2011 filed on behalf of prosecution on the basis of evidence brought on record till date within a period of eight weeks from the date of receipt/production of a copy of this order.
(Rakesh Kumar, J.) Anay Later on 17-06-2014 The order dated 17-06-2014 passed by this Court be communicated to the Court below through FAX on cost being deposited by the petitioner.
(Rakesh Kumar, J.) NKS/-